KSM may also try to use a public trial in Manhattan to air valuable intelligence information. For example, during the civilian prosecutions following the first World Trade Center bombing, a list of unindicted co-conspirators provided at trial wound up reaching Osama Bin Laden. Similarly, according to former Attorney General Michael Mukasey, testimony about the delivery of a cell phone battery alerted Al Qaeda terrorists that "their communication links had been compromised."
This was not the only time a civilian trial for terrorists did not go according to plan. Just ask Louis Pepe, a former Manhattan prison guard. Pepe was guarding Mamdouh Salim, a co-founder of Al Qaeda who was implicated in the 1998 U.S. Embassy bombings, when Salim tried to kidnap his lawyer and escape. Salim plunged a sharpened comb through Pepe's eye into his brain. Pepe is now confined to a wheelchair, blind in one eye, and nearly unable to speak.
Or ask 11 of the 12 jurors who sat on the case of Zacarias Moussaoui, the "20th hijacker." That case took an astonishing 4 1/2 years even though Moussaoui pleaded guilty. The presiding judge barred the death penalty until she was reversed by a higher court, and prevented seven government witnesses from testifying at the penalty phase. In the end, Moussaoui was still spared the death penalty because of a single holdout juror.
When asked for his thoughts on hosting another such trial, the mayor of the Virginia town where the trial took place had this to say: "We would do everything in our power to lobby the President, the governor, the Congress and everyone else to stop it. We've had this experience, and it was unpleasant. Let someone else have it."
So, before the President uses these words again in talking about KSM - "when he's convicted and when the death penalty is applied to him" - or the Attorney General again says, "failure is not an option," they should think about these unpleasant experiences.
Civilian courts are for trying civilians. That's why defendants get Miranda rights, the best lawyers our tax dollars can provide and the right to raise every motion and objection under the sun. Military courts are for trying terrorist war criminals - who violate the rules of war to try and extinguish our way of life.